74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 968
Senate Bill 121
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Attorney General Hardy
Myers for Department of Justice)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Allows Attorney General to intervene in class actions to assert
claim on behalf of class members who fail to submit statements
required for award of damages. Requires that judgment include
money award to Attorney General for amount estimated to be
attributable to claims of those members. Requires Attorney
General to deposit amounts collected under money award in Common
School Fund.
A BILL FOR AN ACT
Relating to unclaimed amounts in class actions; amending ORCP 32;
and appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORCP 32 (subject to amendment by the Council on
Court Procedures on December ___, 2006) is amended to read:
A Requirement for class action. One or more members of a class
may sue or be sued as representative parties on behalf of all
only if:
A(1) The class is so numerous that joinder of all members is
impracticable;
A(2) There are questions of law or fact common to the class;
A(3) The claims or defenses of the representative parties are
typical of the claims or defenses of the class;
A(4) The representative parties will fairly and adequately
protect the interests of the class; and
A(5) In an action for damages, the representative parties have
complied with the prelitigation notice provisions of section H of
this rule.
B Class action maintainable. An action may be maintained as a
class action if the prerequisites of section A of this rule are
satisfied, and in addition, the court finds that a class action
is superior to other available methods for the fair and efficient
adjudication of the controversy. The matters pertinent to this
finding include:
B(1) The extent to which the prosecution of separate actions by
or against individual members of the class creates a risk of:
B(1)(a) Inconsistent or varying adjudications with respect to
members of the class which would establish incompatible standards
of conduct for the party opposing the class; or
B(1)(b) Adjudications with respect to members of the class
which would as a practical matter be dispositive of the interests
of the other members not parties to the adjudications or
substantially impair or impede their ability to protect their
interests;
B(2) The extent to which the relief sought would take the form
of injunctive relief or corresponding declaratory relief with
respect to the class as a whole;
B(3) The extent to which questions of law or fact common to the
members of the class predominate over any questions affecting
only individual members;
B(4) The interest of members of the class in individually
controlling the prosecution or defense of separate actions;
B(5) The extent and nature of any litigation concerning the
controversy already commenced by or against members of the class;
B(6) The desirability or undesirability of concentrating the
litigation of the claims in the particular forum;
B(7) The difficulties likely to be encountered in the
management of a class action that will be eliminated or
significantly reduced if the controversy is adjudicated by other
available means; and
B(8) Whether or not the claims of individual class members are
insufficient in the amounts or interests involved, in view of the
complexities of the issues and the expenses of the litigation, to
afford significant relief to the members of the class.
C Determination by order whether class action to be maintained.
C(1) As soon as practicable after the commencement of an action
brought as a class action, the court shall determine by order
whether and with respect to what claims or issues it is to be so
maintained and shall find the facts specially and state
separately its conclusions thereon. An order under this section
may be conditional, and may be altered or amended before the
decision on the merits. { + Upon entry of an order under this
section, the plaintiff in the action shall serve a copy of the
order on the Attorney General. + }
C(2) Where a party has relied upon a statute or law which
another party seeks to have declared invalid, or where a party
has in good faith relied upon any legislative, judicial, or
administrative interpretation or regulation which would
necessarily have to be voided or held inapplicable if another
party is to prevail in the class action, the court may postpone a
determination under subsection (1) of this section until the
court has made a determination as to the validity or
applicability of the statute, law, interpretation, or regulation.
D Dismissal or compromise of class actions; court approval
required; when notice required. Any action filed as a class
action in which there has been no ruling under subsection C(1) of
this rule and any action ordered maintained as a class action
shall not be voluntarily dismissed or compromised without the
approval of the court, and notice of the proposed dismissal or
compromise shall be given to some or all members of the class in
such manner as the court directs, except that if the dismissal is
to be without prejudice or with prejudice against the class
representative only, then such dismissal may be ordered without
notice if there is a showing that no compensation in any form has
passed directly or indirectly from the party opposing the class
to the class representative or to the class representative's
attorney and that no promise of such compensation has been made.
If the statute of limitations has run or may run against the
claim of any class member, the court may require appropriate
notice.
E Court authority over conduct of class actions. In the conduct
of actions to which this rule applies, the court may make
appropriate orders which may be altered or amended as may be
desirable:
E(1) Determining the course of proceedings or prescribing
measures to prevent undue repetition or complication in the
presentation of evidence or argument, including precertification
determination of a motion made by any party pursuant to Rules 21
or 47 if the court concludes that such determination will promote
the fair and efficient adjudication of the controversy and will
not cause undue delay;
E(2) Requiring, for the protection of class members or
otherwise for the fair conduct of the action, that notice be
given in such manner as the court may direct to some or all class
members of any step in the action, of the proposed extent of the
judgment; of the opportunity of members to signify whether they
consider the representation fair and adequate, to intervene and
present claims or defenses or otherwise to come into the action,
or to be excluded from the class;
E(3) Imposing conditions on the representative parties, class
members, or intervenors;
E(4) Requiring that the pleadings be amended to eliminate
therefrom allegations as to representation of absent persons, and
that the action proceed accordingly; and
E(5) Dealing with similar procedural matters.
F Notice and exclusion.
F(1) When ordering that an action be maintained as a class
action under this rule, the court shall direct that notice be
given to some or all members of the class under subsection E(2)
of this rule, shall determine when and how this notice should be
given and shall determine whether, when, how, and under what
conditions putative members may elect to be excluded from the
class. The matters pertinent to these determinations ordinarily
include: (a) the nature of the controversy and the relief sought;
(b) the extent and nature of any member's injury or liability;
(c) the interest of the party opposing the class in securing a
final resolution of the matters in controversy; (d) the
inefficiency or impracticality of separately maintained actions
to resolve the controversy; (e) the cost of notifying the members
of the class; and (f) the possible prejudice to members to whom
notice is not directed. When appropriate, exclusion may be
conditioned on a prohibition against institution or maintenance
of a separate action on some or all of the matters in controversy
in the class action or a prohibition against use in a separately
maintained action of any judgment rendered in favor of the class
from which exclusion is sought.
F(2) Prior to the entry of a judgment against a defendant the
court shall request members of the class who may be entitled to
individual monetary recovery to submit a statement in a form
prescribed by the court requesting affirmative relief which may
also, where appropriate, require information regarding the nature
of the loss, injury, claim, transactional relationship, or
damage. The statement shall be designed to meet the ends of
justice. In determining the form of the statement, the court
shall consider the nature of the acts of the defendant, the
amount of knowledge a class member would have about the extent of
such member's damages, the nature of the class including the
probable degree of sophistication of its members, and the
availability of relevant information from sources other than the
individual class members.
{ - The amount of damages assessed against the defendant shall
not exceed the total amount of damages determined to be allowable
by the court for each individual class member who has filed a
statement required by the court, assessable court costs, and an
award of attorney fees, if any, as determined by the court. - }
F(3) { + Unless the Attorney General has filed a claim on
behalf of a class member under section P of this rule, + }
failure of a class member to file a statement required by the
court will be grounds for entry of judgment dismissing such class
member's claim for individual monetary recovery without prejudice
to the right to maintain an individual, but not a class, action
for such claim.
F(4) Plaintiffs shall bear costs of any notice ordered prior to
a determination of liability. The court may, however, order that
defendant bear all or a specified part of the costs of any notice
included with a regular mailing by defendant to its current
customers or employees. The court may hold a hearing to determine
how the costs of such notice shall be apportioned.
F(5) No duty of compliance with due process notice requirements
is imposed on a defendant by reason of the defendant including
notice with a regular mailing by the defendant to current
customers or employes of the defendant under this section.
F(6) As used in this section, 'customer' includes a person,
including but not limited to a student, who has purchased
services or goods from a defendant.
G Commencement or maintenance of class actions regarding
particular issues; subclasses. When appropriate an action may be
brought or ordered maintained as a class action with respect to
particular claims or issues or by or against multiple classes or
subclasses. Each subclass must separately satisfy all
requirements of this rule except for subsection A(1).
H Notice and demand required prior to commencement of action
for damages.
H(1) Thirty days or more prior to the commencement of an action
for damages pursuant to the provisions of sections A and B of
this rule, the potential plaintiffs' class representative shall:
H(1)(a) Notify the potential defendant of the particular
alleged cause of action; and
H(1)(b) Demand that such person correct or rectify the alleged
wrong.
H(2) Such notice shall be in writing and shall be sent by
certified or registered mail, return receipt requested, to the
place where the transaction occurred, such person's principal
place of business within this state, or, in the case of a
corporation or limited partnership not authorized to transact
business in this state, to the principal office or place of
business of the corporation or limited partnership, and to any
address the use of which the class representative knows, or on
the basis of reasonable inquiry, has reason to believe is most
likely to result in actual notice.
I Limitation on maintenance of class actions for damages. No
action for damages may be maintained under the provisions of
sections A and B of this rule upon a showing by a defendant that
all of the following exist:
I(1) All potential class members similarly situated have been
identified, or a reasonable effort to identify such other people
has been made;
I(2) All potential class members so identified have been
notified that upon their request the defendant will make the
appropriate compensation, correction, or remedy of the alleged
wrong;
I(3) Such compensation, correction, or remedy has been, or, in
a reasonable time, will be, given; and
I(4) Such person has ceased from engaging in, or if immediate
cessation is impossible or unreasonably expensive under the
circumstances, such person will, within a reasonable time, cease
to engage in such methods, acts, or practices alleged to be
violative of the rights of potential class members.
J Application of sections H and I of this rule to actions for
equitable relief; amendment of complaints for equitable relief to
request damages permitted. An action for equitable relief brought
under sections A and B of this rule may be commenced without
compliance with the provisions of section H of this rule. Not
less than 30 days after the commencement of an action for
equitable relief, and after compliance with the provisions of
section H of this rule, the class representative's complaint may
be amended without leave of court to include a request for
damages. The provisions of section I of this rule shall be
applicable if the complaint for injunctive relief is amended to
request damages.
K Limitation on maintenance of class actions for recovery of
certain statutory penalties. A class action may not be maintained
for the recovery of statutory minimum penalties for any class
member as provided in ORS 646.638 or 15 U.S.C. 1640(a) or any
other similar statute.
L Coordination of pending class actions sharing common question
of law or fact.
L(1)(a) When class actions sharing a common question of fact or
law are pending in different courts, the presiding judge of any
such court, upon motion of any party or on the court's own
initiative, may request the Supreme Court to assign a Circuit
Court, Court of Appeals, or Supreme Court judge to determine
whether coordination of the actions is appropriate, and a judge
shall be so assigned to make that determination.
L(1)(b) Coordination of class actions sharing a common question
of fact or law is appropriate if one judge hearing all of the
actions for all purposes in a selected site or sites will promote
the ends of justice taking into account whether the common
question of fact or law is predominating and significant to the
litigation; the convenience of parties, witnesses, and counsel;
the relative development of the actions and the work product of
counsel; the efficient utilization of judicial facilities and
personnel; the calendar of the courts; the disadvantages of
duplicative and inconsistent rulings, orders, or judgments; and
the likelihood of settlement of the actions without further
litigation should coordination be denied.
L(2) If the assigned judge determines that coordination is
appropriate, such judge shall order the actions coordinated,
report that fact to the Chief Justice of the Supreme Court, and
the Chief Justice shall assign a judge to hear and determine the
actions in the site or sites the Chief Justice deems appropriate.
L(3) The judge of any court in which there is pending an action
sharing a common question of fact or law with coordinated
actions, upon motion of any party or on the court's own
initiative, may request the judge assigned to hear the
coordinated action for an order coordinating such actions.
Coordination of the action pending before the judge so requesting
shall be determined under the standards specified in subsection
(1) of this section.
L(4) Pending any determination of whether coordination is
appropriate, the judge assigned to make the determination may
stay any action being considered for, or affecting any action
being considered for, coordination.
L(5) Notwithstanding any other provision of law, the Supreme
Court shall provide by rule the practice and procedure for
coordination of class actions in convenient courts, including
provision for giving notice and presenting evidence.
M Form of judgment. The judgment in an action ordered
maintained as a class action, whether or not favorable to the
class, shall specify or describe those found to be members of the
class or who, as a condition of exclusion, have agreed to be
bound by the judgment. If a judgment that includes a money award
is entered in favor of a class, the judgment must, when possible,
identify by name each member of the class and the amount to be
recovered thereby.
N Attorney fees, costs, disbursements, and litigation expenses.
N(1)(a) Attorney fees for representing a class are subject to
control of the court.
N(1)(b) If under an applicable provision of law a defendant or
defendant class is entitled to attorney fees, costs, or
disbursements from a plaintiff class, only representative parties
and those members of the class who have appeared individually are
liable for those amounts. If a plaintiff is entitled to attorney
fees, costs, or disbursements from a defendant class, the court
may apportion the fees, costs, or disbursements among the members
of the class.
N(1)(c) If the prevailing class recovers a judgment that can be
divided for the purpose, the court may order reasonable attorney
fees and litigation expenses of the class to be paid from the
recovery.
N(1)(d) The court may order the adverse party to pay to the
prevailing class its reasonable attorney fees and litigation
expenses if permitted by law in similar cases not involving a
class.
N(1)(e) In determining the amount of attorney fees for a
prevailing class the court shall consider the following factors:
N(1)(e)(i) The time and effort expended by the attorney in the
litigation, including the nature, extent, and quality of the
services rendered;
N(1)(e)(ii) Results achieved and benefits conferred upon the
class;
N(1)(e)(iii) The magnitude, complexity, and uniqueness of the
litigation;
N(1)(e)(iv) The contingent nature of success; and
N(1)(e)(v) Appropriate criteria in DR 2-106 of the Oregon Code
of Professional Responsibility.
N(2) Before a hearing under section C of this rule or at any
other time the court directs, the representative parties and the
attorney for the representative parties shall file with the
court, jointly or separately:
N(2)(a) A statement showing any amount paid or promised them by
any person for the services rendered or to be rendered in
connection with the action or for the costs and expenses of the
litigation and the source of all of the amounts;
N(2)(b) A copy of any written agreement, or a summary of any
oral agreement, between the representative parties and their
attorney concerning financial arrangement or fees; and
N(2)(c) A copy of any written agreement, or a summary of any
oral agreement, by the representative parties or the attorney to
share these amounts with any person other than a member, regular
associate, or an attorney regularly of counsel with the law firm
of the representative parties' attorney. This statement shall be
supplemented promptly if additional arrangements are made.
O Statute of limitations. The statute of limitations is tolled
for all class members upon the commencement of an action
asserting a class action. The statute of limitations resumes
running against a member of a class:
O(1) Upon filing of an election of exclusion by such class
member;
O(2) Upon entry of an order of certification, or of an
amendment thereof, eliminating the class member from the class;
O(3) Except as to representative parties, upon entry of an
order under section C of this rule refusing to certify the class
as a class action; and
O(4) Upon dismissal of the action without an adjudication on
the merits.
{ + P Claim by Attorney General. The court shall allow the
Attorney General to intervene in any class action for the purpose
of asserting a claim on behalf of members of the class who fail
to submit a statement under subsection F(2) of this rule. In any
class action in which the Attorney General intervenes under the
provisions of this section, the court shall determine the number
of class members who fail to submit statements under subsection
F(2) of this rule. The judgment shall include a money award to
the Attorney General for the amount estimated to be attributable
to the claims of class members who fail to submit statements. The
Attorney General shall deposit all amounts collected under the
money award in the Common School Fund. Amounts so deposited are
continuously appropriated to the Department of State Lands for
the purposes for which other moneys in the Common School Fund may
be used. + }
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